Tribes win case against government
 
 
 
April 19, 2005
 
 
By Brodie Farquhar, Star-Tribune correspondent
 
Casper Star-Tribune
 
Casper, Wyoming
 
 
To submit a Letter to the Editor: letters@casperstartribune.net
 
 
Lander, Wyoming - Wind River Indian Reservation tribes could realize about $6.5 million in federal payments after the U.S. Supreme Court on Monday declined to consider the government's appeal of a lower-court ruling in favor of the tribes.
 
Earlier this month, the Bush administration argued the Northern Arapaho and Eastern Shoshone tribes waited too long to sue the Interior Department over federal management of minerals on the reservation dating back nearly 60 years.

Without comment, justices let stand the lower-court ruling that allowed most of the claims by the Wyoming tribes. The tribes allege the federal government mismanaged oil, gas, timber and grazing royalties from 1946 to 1973.

An attorney for the tribes, speaking on condition of anonymity, estimated an ultimate payment of $6.5 million to the tribes from the Interior Department.

The refusal of the Supreme Court to reopen the case, the tribal attorney said, secures a $12 million payment received last year, as well as additional interest, at a rate yet to be determined.

"My general estimate is that the tribes will see a payment of $6 million, by settlement or negotiation, within the next six months," the attorney said.

The $6 million anticipated payment arises from an accounting of oil and gas royalties owed the tribes, but not enforced by the federal government, from 1973 to 2000, he said.

In addition, and as a separate issue, the Supreme Court's denial of the federal appeal sets the stage for an additional $550,000 payment to the tribes, based on an earlier settlement about sand and gravel royalties, he said.

The attorney readily acknowledged that compared to a potential federal liability of $200 billion in a class-action trust management lawsuit (Cobell v. Norton), this victory for the Wind River tribes is relatively minor.

"It is good for the tribes," he said, but was uncertain whether it will have any implications for the larger lawsuit, potentially affecting 500,000 American Indians.



Background

Ordinarily, fraud claims have a six-year time limit for filing suit. But a federal statute allows the tribes to postpone that deadline if the government hasn't provided an accounting of the trust funds set up on their behalf. The Interior Department has not done that yet.

At issue was the scope of the federal law allowing the delayed claims if they concern "losses to or mismanagement of trust funds."

The tribes argued that should include alleged mismanagement of natural resources, such as failure to negotiate adequate prices for sand and gravel leases, that they say devalued their trust fund. The government disagreed and argued they should be limited to mismanagement of funds actually contained in the trust accounts.

In a ruling last year, the U.S. Court of Appeals for the Federal Circuit staked a middle ground. It allowed claims involving the actual trust funds as well as alleged losses due to the government's failure to collect payments under sand and gravel payments. But it rejected the tribes' claims of losses due to inadequate negotiation of lease prices.

The Justice Department had urged the Supreme Court to hear the appeal, arguing that the lower ruling "will revive long-moribund claims and substantially increase the potential liability and litigation burdens of the United States."

In 1887, Congress created a trust fund for Indians managed by the government.

 

Copyright 2005, Casper Star-Tribune.

http://www.casperstartribune.net/articles/2005/04/19/news/wyoming/6c2a85e1ab593b

4f87256fe800038fa8.txt

 

Additional researched, recommended reading:

 

Indian Trust - Cobell v. Norton: What we can expect for 2005 and beyond

By Elouise Cobell, Lead Plaintiff
Blackfeet Reservation Development Fund
125 North Public Square
Browning, MT 59417

info@indiantrust.com

 

My fellow trust beneficiaries,

As we move into 2005, we have much to reflect upon, as Indian trust beneficiaries and as plaintiffs in the Cobell v. Norton lawsuit. With two recent U.S. Court of Appeals decisions, a nine-month attempt at mediation, and a presidential election, it was quite a busy year. We expect the coming year to be just as eventful, with considerable progress in our efforts to force the United States government to account for more than a century of income that has been collected by the government from property we own -- including income from leases, grazing, mineral rights, and the outright sale of our land.

On two successive Fridays in early December, the United States Court of Appeals for the D.C. Circuit issued decisions that resoundingly affirmed the authority of U.S. District Judge Royce C. Lamberth to preside over our case. Some have tried to paint these decisions as a setback, but nothing could be further from the truth. Although the appeals court decisions overturned several of Judge Lamberth’s procedural rulings, we were extremely pleased that the court otherwise affirmed many of the central principles of our case.

For example: after almost two years of the U.S. government arguing that Judge Lamberth has no further jurisdiction over the case, the Court of Appeals once and for all rejected this notion. The government had argued that Judge Lamberth is some sort of "rogue" judge, forcing his will upon the U.S. Department of the Interior, and that he has no authority to reform the grossly mismanaged Individual Indian Trust. The government lost that argument, and they will be unable to make it again.

In fact, in the first of the two decisions, the appeals court definitively stated that the district court retains “substantial latitude” to fashion an equitable remedy, because the lawsuit is “both an Indian case and a trust case” in which the trustees have “egregiously breached their fiduciary duties.” The court also upheld Judge Lamberth's authority to grant relief to Indian Trust beneficiaries by identifying breaches and management deficiencies and "ordering specific relief for those breaches."

And in the most significant aspect of the decisions, the appeals court clearly recognized we have the right to full interest on all funds held by the government in trust. This resolves a longstanding dispute in this case, and makes clear the ultimate resolution or settlement will be in the tens of billions of dollars.

This particular ruling is critical to our case. You may have heard the government claim that its review of certain beneficiary accounts found little money missing. This notion is laughable. The government’s so-called “analysis” was based upon [its] false, misleading and incomplete trust fund data. No self-respecting accountant would take this finding seriously. Under their system of analysis, Enron's books would have balanced!

Make no mistake, we will make the U.S. government prove its numbers, and provide a real accounting, with interest, on money that has been taken from us over the course of more than a century.

Finally, the Court of Appeals also ruled that the legislation enacted last year to stop further proceedings in Cobell v. Norton (the so-called Midnight Rider) was constitutional only because of its temporary nature.

This is an explicit endorsement of the underlying validity of judicial authority over this case. There are clear limitations on the ability of Congress to interfere with this case.

Regarding the presidential election: I would like to thank all of the Native people that came out in unprecedented numbers in the election to show that the Native vote counts! It was inspiring to go around the country and see my fellow Indians registering to vote and looking forward to Election Day with renewed hope. With the Bush re-election and Interior Secretary Gale Norton’s decision to remain for a second term, we pledge to build on the positive momentum of the past year and demand public accountability from our elected officials.

I know this has been a long fight, a seemingly endless round of court hearings and appeals. But we all must remember that with each new district court decision and each new Court of Appeals ruling, we establish new rights for American Indians -- rights that have been denied native people since this country was founded. Rights other Americans routinely take for granted. But our work is far from over.

We must stay the course. If we do, I am confident that the government will someday honor its 100-year-old fiduciary duty. The courts agree, and they have now ruled that the district court has the authority to compel Secretary Gale Norton and her colleagues if they continue to flout their trust duties.

We must stand united and refuse to give up until we achieve justice for each and every one of our 500,000 beneficiaries in this case. I pledge to you that I will not give up this fight. The government has taken our money and mismanaged it for more than a century. We only want what is ours -- as American citizens, we cannot be deprived of the land and resources we own.

I refuse to sit by as our fellow beneficiaries -- our mothers, grandparents, sisters and loved ones -- die without receiving what is legally theirs. We are encouraged that the U.S. Court of Appeals ruled that Interior must fix what they admit is a seriously broken trust management system, and that Judge Lamberth retains considerable authority over all aspects of this case. We believe that these appeals court decisions open up an entirely new phase of this litigation, with full discovery to determine specific breaches of trust. We look forward to heading back to district court so that we may finally get a resolution of the case -- and the justice our friends and relatives so rightly deserve.

Sincerely,

/s/ Elouise Cobell

Elouise Cobell

 

Copyright 2005, Blackfeet Reservation Development Fund, Inc.

http://www.indiantrust.com/

 

 

Cobell v. Norton - "Sham" Certification Process Used to Okay Defective Computer Systems

 

April 12, 2005

 

Contact: Bill McAllister 703-385-6996

Washington, D.C. - The Interior Department used "a sham certification and accreditation process" to operate defective computer systems [that] house or access individual Indian Trust accounts, plaintiffs told a federal judge.


Citing the Interior Department's own records, lawyers in the Cobell lawsuit against Interior Secretary Gale Norton have asked U.S. District Judge Royce Lamberth to reimpose a temporary restraining order, shutting down all trust systems.


The temporary restraining order and a preliminary injunction against the department are essential to protect 500,000 trust account beneficiaries from further irreparable harm, the petition notes.


"Because it is indisputable that the 'poor state of network security' creates an imminent risk of irreparable injury...plaintiffs request that this court disconnect from the Internet and shut down each information technology system which houses or access individual Indian trust data to protect plaintiffs against further injury to their interests...," the petition reads.


It cited a study by the Interior Department's own inspector general who reported that "given the poor state of network security...and the the weak access controls we encountered on many systems, it is safe to say that we could have easily compromised the confidentiality, integrity and availability of the identified Indian Trust data residing on such systems."


Judge Lamberth has twice directed cutoffs of Interior's computer systems to protect trust data. But each time the department has reopened those systems, contending that they were safe from computer hackers.


The new filing by the Cobell lawyers reports that Interior's chief information officer, Hord Tipton, has said in a deposition that Interior officials did not even consider the risk to Indian trust data when they reviewed the systems.


Additional details of how the department reconnected its computers using the sham accreditation process are available in the filing for the temporary restraining order at www.indiantrust.com.

 

Copyright 2005, Blackfeet Reservation Development Fund, Inc.

http://www.indiantrust.com/index.cfm?FuseAction=PressReleases.ViewDetail&Press

Release_id=112&Month=4&Year=2005

 

Government Communications with Beneficiaries

 

There is no restriction on oral (spoken) communications between the government and Individual Indian trust beneficiaries, including those who wish to sell, exchange, convey or convert their Trust land. The U.S. District Court for the District of Columbia confirmed this on October 22, 2004; however, written communications from the BIA [Bureau of Indian Affairs, a Department of Interior agency] and other bureaus or offices within the Interior Department concerning the sale, exchange, conveyance, and conversion of Trust land (and the historical accounting) must include a Notice prescribed by the Court.

http://www.indiantrust.com/_pdfs/20041022MemorandumOpinionreNotice.pdf (224 KB)

 

Latest Information

 

 
4/19 JUDGE SCHEDULES WEDNESDAY HEARING ON INTERIOR'S FAULTY COMPUTER SECURITY
4/18 Professor Richard J. Pierce's Reign of Error - - Part Two
4/18 Professor Richard J. Pierce's Reign of Error in the Administrative Law Review
4/18 Native American Apology Is Cause For Prayer In U.S. Congress Court dealings with Native Trust Fund also necessitate prayer of repentence
4/18 Interior shuts down BLM Web site
4/15 Plaintiffs Oppose Secretary Norton's Needless Effort to Order Removal of the Former Court Master: An Issue That is Moot   527.0 KBs
4/14 Bureau of Land Management Closes Website
4/14 Plaintiffs Notice. Disclosure of Deposition Plans for Interior Officials on Security of Trust Records   454.7 KBs
4/13 Plaintiffs Notice. Plaintiffs notice MMS for deposition regarding the security of their trust systems.  8.2 KBs
4/13 Plaintiffs Request for Production. Plaintiffs propound their 15th request for production of documents on Norton.  29.0 KBs
4/12 Cobell v. Norton - "Sham" Certification Process Used to Okay Defective Computer Systems
4/11 Plaintiffs' Motion. Plaintiffs move the District Court for a temporary restraining order terminating the operation of all individual Indian trust systems.  97.7 KBs
4/11 Neighborhood Coalition Honors Indian Leader Elouise Cobell of Montana
4/07 Court of Appeals Order Court of Appeals Stays Structural Injunction; Expedites Briefing  9.8 KBs
4/04 Plaintiffs' Motion. Plaintiffs move the appeals court to dismiss contemnors mandamus petition.  865.4 KBs
3/31 Plaintiffs' Reply. Plaintiffs file their reply in support of motion for the U.S. Court of Appeals to remand the accounting structural injunction back to the district court to resolve whether or not the court-ordered accounting is even possible.  302.5 KBs
3/30 Plaintiffs Notice. Plaintiffs have re-filed their motion to compel discovery in regards to contemnor Michael Carr.  728.9 KBs
3/30 Plaintiffs' Reply. Plaintiffs file their reply in support of motion for enlargement to file bills of particulars with respect to remaining contemnors.  15.9 KBs
3/30 Plaintiffs Notice. Plaintiffs provide the Court notice of supplemental authority in support of their application; cite arguments made by the government in Philip Morris contrary to their novel position in Cobell.  322.3 KBs
3/28 Plaintiffs' Memorandum. Plaintiffs provide a memorandum to the Court regarding the impact of the Court of Appeals decision on future contempt proceedings in this case.  30.6 KBs
3/28 Plaintiffs' Reply. Plaintiffs file their reply in support of their contempt motion regarding contemnors' destruction of electronic trust records.  48.4 KBs
3/25 Deposition Transcript. Plaintiffs depose Interior Chief Information Officer, Hord Tipton.  298.8 KBs
3/18 Plaintiffs Notice. Plaintiffs provide notice to the Court of prior filings regarding contemnors' violations of law and court orders.  3.9 MBs
3/17 Plaintiffs' Opposition. Plaintiffs oppose Norton's effort to stay the district court's recently reissued accounting injunction.  1.5 MBs
3/15 Plaintiffs Brief. Plaintiffs file their case management brief and outline their preferred equitable remedies including removal of Gale Norton as trustee-delegate and disgorgement of $13 billion plus interest into the registry of the court.  1013.7 KBs

http://www.indiantrust.com/

 

Case No. 1:96CV01285 (D.D.C.)

 

http://www.usdoj.gov/civil/cases/cobell/